Changing Workplaces Review Special Advisors’ Interim Report

October 31, 2016

Alan Willaert  -  AFM Vice President from Canada

The Ontario Government has released an interim report of the Changing Workplaces Review, which can be found at: https://www.labour.gov.on.ca/english/about/pdf/cwr_interim.pdf.

This 312-page document contains a synopsis of submissions from various unions and organizations that pertain to areas of the Employment Standards Act (ESA) and the Labour Relations Act (LRA) that may no longer be relevant in today’s workplace—specifically to workers in the audiovisual/media industry. Also contained are what the advisors consider to be options, based on those submissions and existing practice in other jurisdictions around the world.

As in all things involving government, this vast review may be nothing but a diversion pending the next election; or, it may be an opportunity to make positive change for musicians in how they are viewed and treated in the workforce and the remedies available to them in conflicts with employers.

For Canadian musicians, maintaining status as either independent or dependent contractors has huge tax advantages. Unfortunately, in most cases, this precludes the ability to capitalize on the benefits of being an employee. Certainly, a hybrid of the two is desirable, yet unlikely to ever materialize.

The CFM has taken the position that we will support some of the principles put forth by other arts organizations such as ACTRA, IATSE, and the DGC (some of whom do have employee status), but we must also think of what is best for working musicians. That, of course, is legislation that mirrors the federal Status of the Artist Act.

Here is the content of the submission to Queen’s Park from the CFM:

4.2.2 – Related and Joint Employer

Respectfully, the observations and possible solutions suggested in the review in determining the “true employer” or “related employer” does not address the shell game that exists within the media industry as it relates to musicians. As an example, let’s use a hypothetical film entitled Working Title, which is being produced by a member of the Canadian Media Producers’ Association (CMPA) for initial broadcast on Canadian TV or cable.

The independent producer generally retains the services of a composer under a personal services contract, whereby the composer agrees to deliver a finished original recording as underscore for Working Title. The composer writes the score, and may perform some or all of the parts on a digital workstation (synthesizer). Or, the composer may hire additional musicians—in some cases a full orchestra—to record an even more elaborate score.

Either way, the composer and the musicians would be covered under a CFM film agreement. These agreements contain language stipulating that the original score must remain synchronized to Working Title, and that the music cannot be extracted to be reused or repurposed for other programming, without adherence to the appropriate CFM agreement. But the independent producer is not the signatory (because they cannot be compelled to bargain with the CFM), and through their personal services contract with the composer, require the composer to be signatory and thus technically responsible for the recorded product.

Now it gets interesting. Let’s assume that the terms of the CFM agreement have not been adhered to, and the music for Working Title is now being used in a television spin-off programme. Who, then, is responsible for making the musicians (including the composer), whole? Is it the poor composer, who the independent producer insisted upon being the employer of the musicians? Is it the independent producer, who owns the intellectual property (copyright) on Working Title? Is it the broadcaster, who perhaps initially commissioned the film to be produced and subsequently lifted the music for their new TV show? Is it the (possible) US co-producer, who has invested heavily in the production as a silent partner? Is there any liability on the part of the Ontario government, which funded a significant part of the production through tax credits and grants?

There are many possible combinations of the above scenario, including multiple production companies, sometimes solely incorporated to payroll only Working Title, and then disappear upon completion of the production to avoid further liability, or any detectable connection with a “true” employer.

While the suggested solutions in 4.2.2, including rulings being made on a case-by-case basis, may address more simple relationships, there is no way they can address the above convoluted example. Interestingly, the above confusion is entirely avoided if the CFM negotiates a scale agreement with the independent producer.

The CFM, therefore, recommends introduction of provincial Status of the Artist legislation, with a collective bargaining component, as contemplated in 4.6.1—Broader-based Bargaining Structures, Option 9. In addition, we recommend that the Ontario Labour Relations Board (OLRB) govern the act, similar to how the Canadian Industrial Relations Board (CIRB) has assumed that responsibility formerly held by the Canadian Artists and Producers Professional Relations Tribunal (CAPPRT).

In addition, we recommend that any single producer who becomes part of a producer association and is bound by a scale or other agreement, be automatically bound by such agreement upon joining. Conversely, a producer should not be allowed to escape the terms of an agreement by withdrawing membership from the producer association.

Further, once a provincial Status of the Artist Act becomes law, any existing collective or scale agreement negotiated by any of the arts associations or unions, must be grandfathered to avoid any unforeseen negative impact.

5.2.1 – Definition of Employee

Musicians represented by the CFM have many different employment scenarios, ranging from clear “independent contractor” gigs (such as weddings or concert work), to “dependent contractor” situations (such as symphony orchestras and long-run theatrical work) to instances where they are employees by definition.

The CFM supports the notion that “dependent contractors” should be provided for in the ESA under Option 6. We also support the premise that, in the case of an employer attempting to avoid responsibilities under the ESA by classifying workers as self-employed, the burden of proof would be on the employer to make the case as to why they are not employees or dependent contractors, whichever the case may be.

5.2.2 – Who Is the Employer and Scope of Liability

The CFM is in support of Option 2: holding employers and/or contractors responsible for their contractors/subcontractors compliance with the ESA.

That said, determining who the players are, as explained in the Working Title example, would lead to unlimited confusion and long lines before the OLRB, in terms of proper application and remedy concerning employers of musicians. In terms of recorded work in audiovisual media, CFM recommends that the determination of who is the employer include the question of intellectual property. Simply, who ultimately owns the copyright on the product? That entity (if not the contractor or subcontractor) should clearly be looked to, especially in the case of obligations and liabilities in the future, or in the case where the copyright is assigned to yet another party.

In Conclusion

The CFM has no objection to the various amendments suggested by our counterparts in the entertainment/media industry in terms of amendments and clarifications to the ESA and LRA. However, we cannot stress enough that such measures fall short of what is required to regulate employment of musicians and remedy any situations that may arise perhaps years after the work is complete. We believe introduction of a provincial Status of the Artist Act is a solution that can only enhance the recommended changes and simplify the relationship between employers and musicians who are traditionally self-employed contractors.

As phase two, the CFM has Status of the Artist legislation written and ready to present.

Hopefully, they will accept our proposal to introduce this legislation, and can then compel individual employers or their associations (if empowered to negotiate) to bargain agreements for our musicians. It would be the right thing to do.

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